15-3230-cv
Brenner v. City of New York Dep’t of Educ.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 8th day of September, two thousand sixteen.
PRESENT: REENA RAGGI,
DENNY CHIN,
CHRISTOPHER F. DRONEY,
Circuit Judges.
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LAWRENCE BRENNER,
Plaintiff-Appellant,
v. No. 15-3230-cv
CITY OF NEW YORK DEPARTMENT OF
EDUCATION, ANTONIO K’TORI, individually and in
his official capacities,
Defendants-Appellees.
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APPEARING FOR APPELLANT: THOMAS RICOTTA, White, Ricotta & Marks,
P.C., Long Island City, New York.
APPEARING FOR APPELLEES: BENJAMIN WELIKSON, Assistant
Corporation Counsel (Richard Dearing, Deborah
A. Brenner, Of Counsel, on the brief), for
Zachary W. Carter, Corporation Counsel of the
City of New York, New York, New York.
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Appeal from a judgment of the United States District Court for the Eastern District
of New York (Brian M. Cogan, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment entered on September 18, 2015, is AFFIRMED.
Plaintiff Lawrence Brenner appeals from an award of summary judgment in favor of
defendants New York City Department of Education and Principal Antonio K’Tori on
Brenner’s claims that he was subjected to a hostile work environment and terminated in
violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et
seq., the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq., and
42 U.S.C. § 1983. “We review an award of summary judgment de novo, construing the
evidence in the light most favorable to the nonmoving party and drawing all reasonable
inferences in his favor.” McElwee v. Cty. of Orange, 700 F.3d 635, 640 (2d Cir. 2012).
We assume the parties’ familiarity with the facts and record of prior proceedings, which we
reference only as necessary to explain our decision to affirm largely for the reasons set
forth by the district court. See Brenner v. City of New York Dep’t of Educ., 132 F. Supp.
3d 407, 416–23 (E.D.N.Y. 2015).
1. Termination
We review Title VII and § 1983 claims of employment discrimination under the
burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). See id. at 802–05 (requiring (1) plaintiff to make out prima facie case of
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discrimination, whereupon (2) burden shifts to employer to advance legitimate,
nondiscriminatory reason for adverse employment action, at which point (3) burden shifts
back to plaintiff to adduce admissible evidence sufficient for rational factfinder to infer that
proffered reason is pretext for impermissible motivation); accord Vivenzio v. City of
Syracuse, 611 F.3d 98, 106 (2d Cir. 2010) (Title VII); Annis v. Cty. of Westchester, 136
F.3d 239, 245 (2d Cir. 1998) (§ 1983). The same framework applies to ADEA claims,
except that, at the third step, a plaintiff must demonstrate that the discriminatory motive
was a but-for cause of the adverse employment action, rather than merely a motivating
factor. See Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 105–06 (2d Cir. 2010).
Defendants do not contest that Brenner made out a prima facie case of
discrimination, and Brenner does not contest that defendants advanced a legitimate,
nondiscriminatory reason for his termination, namely that, during the relevant period,
Brenner did not satisfactorily perform his educational duties as a special education teacher.
[P]laintiff received [1] at least nine unsatisfactory classroom
observations, including several from administrators other than
K’Tori; [2] four unsatisfactory year-end ratings; and [3] an
unsatisfactory evaluation by an independent consultant in the
last year prior to his termination. These negative performance
evaluations are consistent in describing an educator who failed
to live up to the expectations of his supervisors and peers in his
role as a special education teacher, in particular in the areas of
differentiation, lesson planning, and classroom management.
Brenner v. City of New York Dep’t of Educ., 132 F. Supp. 3d at 417–18. Brenner
challenges only the district court’s conclusion that he failed to adduce sufficient evidence
to permit finding that this reason was a pretext for prohibited discrimination.
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The argument fails. As the district court correctly observed, a plaintiff who is
terminated “after a decision, based on substantial evidence, of an undisputedly
independent, neutral, and unbiased adjudicator [who] had the power to prevent the
termination” bears a heavy burden to demonstrate pretext, as such an evaluation “is highly
probative of the absence of discriminatory intent in that termination.” Collins v. N.Y.C.
Transit Auth., 305 F.3d 113, 119 (2d Cir. 2002). In such circumstances, a plaintiff must
“present strong evidence that the decision was wrong as a matter of fact . . . or that the
impartiality of the proceeding was somehow compromised.” Id. Brenner argues that the
independent decision was wrong or infected by K’Tori’s negative evaluations. But the
argument is conclusory, which is insufficient to carry Brenner’s step-three burden under
either a but-for or motivating-factor standard where, as the district court detailed,
substantial evidence supported the independent adjudicator’s finding. See Smith v. Am.
Express Co., 853 F.2d 151, 155 (2d Cir. 1988).
Accordingly, for the reasons stated by the district court, defendants were entitled to
summary judgment on Brenner’s Title VII, § 1983, and ADEA challenges to his
termination.
2. Hostile Work Environment
To defeat summary judgment on a hostile-work-environment claim, a plaintiff must
produce evidence that “the workplace was permeated with discriminatory intimidation,
ridicule, and insult, that was sufficiently severe or pervasive to alter the conditions of the
victim’s employment.” Patterson v. Cty. of Oneida, 375 F.3d 206, 227 (2d Cir. 2004)
(alterations and internal quotation marks omitted). To carry this burden, Brenner relies on
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a handful of K’Tori’s statements that he submits express negative opinions of older, white,
Jewish teachers. Brenner further points to his removal from teaching duties and
reassignment to a “closet” after termination proceedings began. Appellant’s Br. 25.
The stray comments attributed to K’Tori do not amount to the “steady barrage of
opprobrious . . . comments” sufficient to alter the conditions of Brenner’s employment.
Tolbert v. Smith, 790 F.3d 427, 439 (2d Cir. 2015) (quoting Schwapp v. Town of Avon,
118 F.3d 106, 110 (2d Cir. 1997)). As for Brenner’s confinement to a “closet,” we
conclude, as the district court did, that Brenner failed to demonstrate that this action was
other than standard procedure for employees in termination proceedings or that it bore any
connection to discriminatory animus. See Brown v. Henderson, 257 F.3d 246, 252 (2d
Cir. 2001) (“It is axiomatic that mistreatment at work . . . through subjection to a hostile
environment . . . is actionable under Title VII only when it occurs because of an
employee’s . . . protected characteristic.”).
Accordingly, summary judgment was correctly awarded to defendants on Brenner’s
hostile work environment claim.
3. Conclusion
We have considered Brenner’s remaining arguments and conclude that they are
without merit. The judgment of the district court is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
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